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In re Kumar and Delaibatiki [1991] FJHC 46; Hac0001.91s (11 August 1991)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 1 OF 1991

IN THE MATTER OF NOTICES TO SHOW CAUSE
ON THE EDITOR OF FIJI TIMES AND EDITOR OF DAILY POST.

VIRENDRA KUMAR, EDITOR, FIJI TIMES
NEMANI DELAIBATIKI, EDITOR, DAILY POST
Respondents

B. R Sweetman and J. G. Singh for the Editor, Fiji Times
K. Bulewa and J. Semisi for the Editor, Daily Post
I. Mataitoga and M/S N. Shameem for
Director of Public Prosecutions as amicus curiae

JUDGMENT

In this case the Editor, Fiji Times, and the Editor, Daily Post, were called upon to show cause as to why committal proceedings should not be taken against them for having published on the 23^rd July 1991 proceedings of a trial-within-a-trial relating to the admissibility of an alleged confession of the accused held in the absence of assessors and which publications were calculated to prejudice the course of justice.

When the trial was resumed on the 23^rd July 1991 Mr. Afzal Khan, who appeared for the defence, and Mr. Ravi Perera, who appeared for the prosecution, brought to my notice the said publication in both newspapers that morning and Mr. Khan complained that his client had been gravely prejudiced and moved for the discharge of the assessors and a new trial. I readily acceded to his request as it was a proper one and discharged the assessors and ordered a fresh trial to be held about a month and a half later so as to minimize the risk of getting a fresh set of assessors from whose memories the publication in question may not have been fully erased. I also directed the Chief Registrar to issue notices on the two editors to show cause as to why they should not be dealt with for contempt of court.

Both editors appeared before me on 26^th July 1991 and stated through their respective counsel, Mr. Sweetman and Mr. Bulewa, that they had cause to show. They also took up a preliminary objection to the procedure I had followed which I overruled in an order delivered then and there. The objection was that in a matter like this it is the Attorney-General who should move the Court. It is no doubt true that in the majority of case it is time Attorney-General who initiates proceedings in England in proceedings for contempt. But even in England there are situations where the court acts on its own motion particularly in such matters as contempt in the face of the court. In my view the instant case is akin to contempt committed in the face of the court in the literal sense. The court found itself frustrated and stultified on the morning of the resumed trial by the sensational publications which thwarted all chances of a fair trial. The court saw and read the publications which were prominently displayed in both newspapers. It is idle to suggest that the court would be powerless to act instantly on its own to vindicate its authority to control publication of proceedings before it in the interests of justice and that instead it should petition Attorney-General to initiate proceedings at his will and leisure. I do not think that it is seriously suggested that the court would be helpless if for some reason the Attorney-General refused or failed to initiate proceedings.

There is ample authority both in England and Fiji that a court can act on its own in situations such as this. This is the course that was taken by Justice Williams in the matter of Charles Gordon (Fiji Court of Appeal Civil Appeal 49 of 1975). Indeed in that case the summons was signed by the Judge himself. Furthermore the facts which came to the notice of the judge in that case were not matters of common knowledge but some of which had to be gathered by the judge through third parties.

In my view that was a case more suited and proper for a motion by the Attorney-General as all matters on which the judge acted were not within his own knowledge and notice. In the instant case all the material that was needed was available to without recourse to any other source.

Order 52 rule 4 and rule 9 permit the course I took. Order 1 rule 7 Section 3(3) of the Criminal Procedure Code enable resort to be had to English practice and procedure when the local law is silent.

Lord Denning dealt with the ambit of the jurisdiction of a judge to deal summarily on his own motion for contempt in the face of the Court in Balogh v. St. Alban’s Crown Court (1975) Q.B. 73. He said at p. 84:

“But I find nothing to tell us what is meant by “committed in the face of the court.” It has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempt for which a judge of his own motion could punish a man on the spot. So “contempt in the face of the court” is the same thing as “contempt which the court can punish of its own motion.” It really means “contempt in the cognizance of the court.”

Gathering together the experience of the past, then, whatever expression is used, a judge of one of the superior courts or a judge of Assize could always punish summarily of his own motion for contempt of court whenever there was a gross interference with the course of justice in a case that was being tried, or about to be tried, or just over – no matter whether the judge saw it with his own eyes or it was reported to him by the officers of the court, or by others – whenever it was urgent and imperative to act at once.”

(The emphasis is mine)

Both editors filed affidavits in an attempt to show cause. The case of the editor Daily Post was taken up on the 30^th August 1991 and that of the editor of the Fiji Times on the 24^th September 1991.

Substantially both affidavits were more or less in the same strain. They state that the respective reports were compiled by junior and inexperienced reporters who were not aware that such proceedings should not be published. Both editors also state that the publications in question were the result of an innocent mistake and that they did not intend to publish the proceedings which should not have been published. It seems to me that the averments in the respective affidavits do not show any cause as such but are in truth pleas in mitigation of punishment.

A clear distinction has consistently been made in English common law between publication of matter calculated to prejudice the fair trial of a pending case on the one hand and the other forms of contempt on the other. Strict-liability attached to the former whiles mens rea as such was required in the latter.

It has been established in England by a long line of cases beginning from 1742 that in the former class of cases all that the complainant had to prove was that the respondent had published matter which in fact tended to prejudice pending proceedings. It was irrelevant that the respondent did not know that proceedings were pending or that he failed to appreciate the proposed nature of his publication.

In the instant case no assessor could have failed to have read or hear about the publication as the trial was continuing from day to day. The printed word leaves a lasting impression on the human mind which is difficult to obliterate even with the strongest of warnings by the judge. To the lay assessor there could be nothing truer than an “admission coming from the accused himself which was in effect what the publication held it out to be to the public.

In the early case of St. James Evening Post (1742) 2 ALK 469 ignorant woman who merely had possession of the manuscript and whose trade was printing was held liable in contempt. Lord Hardwicke said:-

“But, though it is true, this is a trade, yet they must take care to do it with prudence and caution; for if they print any thing that is libellous, it is no excuse, to say, that the printer had no knowledge of the contents, and was entirely ignorant of its being libellous; and so is the rule at law, and I will always adhere to the strict rules of law in these cases.”

This trend was followed by Palles C.B. who said in Rex v. Dolan (1907) 2 I.R. 960:

“Actual intention to prejudice is immaterial. I wholly deny that the law of this court has been that absence of an actual intention to prejudice is to excuse the party from being adjudged guilty of contempt of court, if the court arrives at the conclusion which I have arrived at, that there is a real danger that it will affect the trial: or that absence of intention is to excuse the party from punishment. Such a circumstance as that ought, no doubt, to be taken into consideration in considering the nature of the punishment to be awarded, as, for instance, whether it should be imprisonment.”

This position was finally confirmed in Regina v. Odhams Press Ltd. and others Ex parte Attorney-General (1957) 1 Q.B. 73. After reviewing all earlier authorities Chief Justice Lord Goddard said at p. 81:

“Again this seems to dispose of any suggestion that mens rea, which means a guilty intention, is in any way material except as to penalty.”

It may be of interest to note that the Contempt of Court Act 1981 which is now the law of England defines the doctrine of strict liability in Section 1 as “the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.” This section is applicable to publications which create a substantial risk that the course of justice in proceedings that are active will be seriously Impeded or prejudiced.

Anyone who publishes the first day’s proceedings in a long awaited trial such as the instant case would surely know that the proceedings were very much active.

Under the present Act in England certain defences are available to the publisher and distributor. A publisher will not be liable if he proves that having taken all reasonable care he does not know and has no reason to suspect that the relevant proceedings are active. A distributor will not be liable if he proves that having taken all reasonable care he doe not know that the publication contains such matter and has no reason to suspect that it is likely to do so.

Even in England therefore in circumstances like those of the instant case the editor will be liable. Any publisher or any one else who chanced to read the report in this case in its unpublished form will not fail to have realized that the relevant proceedings were active and continuing.

It may also be mentioned that intention is even now – as it always was – irrelevant in England as appears from Attorney-General v. English and another (1982) 2 WLR 959 which was decided after the new Act.

Walkin L. J said at 964:

“By way of preface to our reference to it (the Act) it is important to observe that the Attorney-General has not alleged that the respondents intended to influence the course of justice in Dr. Arthur’s trial. His application is founded on the rule of strict liability as defined in section 1.”

The editor, Fiji Times, has in his affidavit categorically accepted full responsibility for the publication. The editor, Daily Post, has stated in his affidavit that he is directly responsible for all the matters that are printed in the newspaper. In any event it is the editor of a newspaper who is generally responsible for all matters published in the newspaper. In the words of Chief Justice Lord Goddard in the Odhams Press Case (Supra) at p.83:

“It has always been a tradition of English journalism that the editor takes responsibility for what is published in his paper and this was held to be a rule of law in Regina v. Evening Standard Co. Ltd.”

The editor of the Fiji Times states that the reporter was not aware that the proceedings were of a trial-within-a-trial held in the absence of the assessors.

The editor of the Daily Post states that the reporter in question was not aware and did not know that such proceedings could not be published.

If the reporters concerned had in fact taken down the proceedings in the court room itself the empty assessors’ box would have started them in the face and they should immediately have been thrown on their guard.

Thereafter at the next stage what were the sub-editors doing? On a reading of the reporter’s copy it should have been obvious from the intrinsic and internal evidence available in the story itself that there was more to it than met the eye. They should promptly have been altered to make further inquiries, as for instance, from the Registry or clerk of court or even the prosecuting for defence solicitors. Even further questioning of the reporter concerned may have revealed the true position.

It seems to me that no reasonable care or precaution was taken to avoid publication of matter which caused incalculable damage to the course of justice.

It is my view that the defences set up in the affidavits are of no avail in a case like this so far as liability is concerned.

I can do no better that cite the words of the Lord Chief Justice of England, Lord Widgery, who said in R. v. Border Television Ltd. 68 Cr. App R. 375 cited by the learned Director of Public Prosecutions. His Lordship said at page 379:

“Equally I would have thought it quite simple for reporter, newspaper men, policemen, probation officers, etc., to realise that when the judge sends the jury out in the course of a trial he send the jury out in order that he may deal with some point which is not fit for the jury’s ears at this stage. It follows from that that when the jury have been out in the course of the day’s hearing the newspaper covering the case should not refer to what went on in their absence or you would get the futile situation in which, having gone to great pains to keep the matter from the jury’s ears during the afternoon, it was made available to their eyes in the evening paper as they left the court. These things are only common sense, and I do not think it is expecting too much to expect reporters and the like to realise when the jury are sent out that they must not report what goes on in the jury’s absence.”

It is perhaps needless to say that the Divisional Court held that the offence of contempt of court had been committed in that case.

I hold that both editors are guilty of contempt of court in the instant case. The question of penalty has caused me a considerable amount of concern and anxiety.

A newspaper undertaking is a sacred trust to be discharged with due regard to the rights of others – not least the rights and privileges of the inarticulate and voiceless defendants in the dock. I have to balance the need for deterrence in the future on the one hand will the mitigating circumstances on the other.

Mr Sweetmen referred to the paucity of trained and experienced journalists in the country and said that the newspapers have to manage as best as they could with the limited material available.

I am therefore mindful of the difficulties and constraints under which newspapers function in the country due to the lack of trained and qualified journalists.

I have also taken into account the expense and wastage – apart from the hardships and inconvenience – caused by the abortive trial of two days.

I am aware that this is the first case of its kind to come up in our Courts.

Above all I have taken into consideration the public apology published by both newspapers which gives hope that such deplorable situations will not recur in the future.

I therefore refrain from imposing a sentence of imprisonment or fine. Instead I propose to do what Lord Chief Justice Widgery did in the Border Television case (supra) in similar circumstances. I order the Editor, Fiji Times and the Editor, Daily Post to pay a sum of $300.00 each as costs within one month from today.

In this case I permitted the editor, Fiji Times to leave the country on the personal undertaking of Mr Sweetman that he would ensure the personal attendance of the respondent if it was required at any time. In view of the order I have now made such personal attendance would be unnecessary if the costs are duly paid.

M.D. Jesuratnam
JUDGE

At Suva
11^th August, 1991

HAC0001.91S